Opinion
No. 684 C.D. 2014
04-07-2015
North Hills School District, Petitioner v. M.B., Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
North Hills School District (District) petitions this Court for review of the Pennsylvania Special Education Hearing Officer's (Hearing Officer) March 26, 2014 decision. The issues for this Court's review are whether the Hearing Officer erred in: (1) denying the District's pre-hearing motion to dismiss the matter; (2) finding that the District did not provide M.B. a free, appropriate, public education (FAPE) during the 2013-2014 school year; and, (3) awarding compensatory education. Upon review, we affirm.
In keeping with the confidentiality and privacy concerns referenced in the Hearing Officer's decision, M.B.'s name and gender are not used in the body of this Opinion.
The term 'free appropriate public education' means special education and related services that--20 U.S.C. § 1401(9).
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the [s]tate educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the [s]tate involved; and
(D) are provided in conformity with the individualized education program [IEP] required under [S]ection 1414(d) of Individuals with Disabilities Education Act (IDEA)].
The facts of this case are largely undisputed. M.B., an 8-year-old District student diagnosed with autism, is eligible for special education services under the Individuals with Disabilities Education Act (IDEA). M.B. is essentially nonverbal.
The IDEA requires that for a state to receive federal assistance, it must provide a child with disabilities a [FAPE] based on the unique needs of the student. 20 U.S.C. § 1412. The IDEA establishes minimum requirements for the education of children with disabilities. To implement those requirements, the Commonwealth, through the Department of Education, promulgated [22] Pa. Code § 14.1[-14.163]. Under the IDEA, as implemented by the state regulations, a school district must develop an [Individualized Education Program (]IEP[)] tailored in accordance with certain procedures for each child with a disability. 22 Pa. Code § 14.32. See also 20 U.S.C. § 1412.Big Beaver Falls Area Sch. Dist. v. Jackson, 615 A.2d 910, 911-12 (Pa. Cmwlth. 1992) (quotation marks and footnotes omitted).
The Department's Regulations define "IEP" as "a written plan for the provision of appropriate early intervention services to an eligible young child, including services to enable the family to enhance the young child's development. The IEP shall be based on and be responsive to the results of the evaluation." 22 Pa. Code § 14.154(a).
Beginning at approximately age three, in 2009 M.B. attended an Early Behavioral Intensive Intervention (EBII) pre-school program that included speech/language and occupational therapy. In the fall of 2009, M.B. was evaluated by the local Intermediate Unit (IU). See Reproduced Record (R.R.) at 289a-300a. According to the October 30, 2009 evaluation report, M.B. was in need of a communication system.
In October 2011, an Individualized Family Service Plan (IFSP)/IEP was developed with the goal for M.B. to use a multi-modal communications system of signs, pictures and verbalizations. Thereafter, M.B. began using an iPod application, iCommunicate, at home and school. M.B. could swipe and scroll the screen to access images to convey phrases such as "I want [object]." M.B.'s IFSP/IEP team, including M.B.'s Parents (Parents), agreed that M.B. did not exhibit behaviors that impeded M.B.'s learning or that of others, and that an assistive technology assessment (ATA) was not necessary.
In January 2012, Parents had M.B. privately evaluated by speech/language pathologist Monica Penezic (Penezic). Thereafter, M.B. attended weekly 30-minute therapy sessions with Penezic, during which M.B. was taught to use a picture communication book (Book) to express phrases like "I want [activity]" and "[a]ll done." Parents used the Book at home.
In the spring of 2012, Parents enrolled M.B in kindergarten at a neighborhood elementary school within the District. An effort was made to transition M.B. to school, whereby M.B.'s EBII instructors and District Life Skills Instructor Kristin Carmody (Carmody) visited M.B. at home during the summer, showed M.B. pictures of the new classroom and created a social story for M.B. In addition, for the commencement of the 2012-2013 school year, the District implemented M.B.'s pre-school IEP. M.B. received speech and language support from the outset of his kindergarten year.
Social stories are tools used to help children on the autism spectrum understand interpersonal communications and interactions.
In September 2012, with Parents' input, the District re-evaluated M.B.'s educational needs. The resulting report (Report) reflected Parents' experience that M.B. "can communicate [M.B.'s] needs by directing you to what it is and, in the past year, [M.B.] has been using words much more. . . . It can be difficult for [M.B.] to find the word to signify what [M.B.] wants to communicate. [M.B.] also has [M.B.'s] own language and is very vocal." R.R. at 206a-207a. Carmody reported at that time that M.B. "becomes frustrated often and demonstrates . . . frustration through tears, clenched fists and stiff body movements. [M.B.] struggles to communicate . . . wants and needs." R.R. at 208a. The District's speech pathologist Kristin Perry concurred, and described that M.B. "has demonstrated little communicative intent. Since the beginning of school, [M.B.] has demonstrated very little ability to communicate . . . wants, needs and ability to answer questions. . . . Given pictures [of] objects or activities, [M.B.] can name key vocabulary and action 1/5 times [when] required." R.R. at 209a. She further reported that when M.B. "is asked what [M.B.] wants to eat, [M.B.] knows to go to [the iPod]" and make a food choice. R.R. at 209a. She stated that M.B. "express[es] multiple (up to 5 word[)] sentences[,] but usually . . . sentence[s] from a TV show or phrase from [M.B.'s iPod]." R.R. at 209a. She concluded that "[i]t is important for [M.B.] to learn some communication skills in order to participate with teachers and peers throughout [M.B.]'s educational environment." R.R. at 210a. The Report's "Special Considerations" section reflected that M.B. had communicative needs that must be considered, but that M.B. does not exhibit behaviors that impede M.B.'s learning or that of others. See R.R. at 231a.
On November 12, 2012, Parents and necessary District staff met and agreed upon M.B.'s 2012-2013 (kindergarten) IEP. See R.R. at 145a-171a. The 2012-2013 IEP appears to have adopted the Report's contents and recognized that "more information was needed to determine the best way to meet [M.B.'s] needs throughout his educational environment." R.R. at 150a. The 2012-2013 IEP provided that M.B. was to receive twenty-one 25-minute speech and language support sessions per quarter (approximately three times weekly). See R.R. at 162a. It also established program modification and specially-designed instruction that "[a]dults will acknowledge [M.B.'s] vocalizations, facial and body expressions [and] gestures as communication." R.R. at 160a. The 2012-2013 IEP confirmed that M.B. did not exhibit behaviors that impeded M.B.'s learning or that of others. See R.R. at 148a.
Following a summer transition process, M.B. was placed into an Autism Support Classroom in a different District elementary school for first grade. On November 7, 2013, Parents and the District met and agreed upon M.B.'s 2013-2014 (first grade) IEP. See R.R. at 172a-205a. According to M.B.'s IEP Goal Tracking Sheets, M.B. achieved limited and inconsistent progress since September 2013, even with the use of an iPod. See R.R. at 438a-480a. The 2013-2014 (first grade) IEP reflected: "It continues to be of utmost importance that [M.B.] develop basic communication skills in order to interact with peers and adults and achieve success in [M.B.'s] educational environment." R.R. at 179a. Nevertheless, the 2013-2014 IEP reduced M.B.'s speech/language therapy sessions to two 25-minute sessions per week. See R.R. at 201a. The 2013-2014 IEP form again reflected that M.B.'s behaviors did not impede M.B.'s learning or that of others. See R.R. at 176a.
By December 30, 2013 letter, M.B.'s advocate Trea Graham (Graham), from Advo-Kid, notified the District's Superintendent of Parents' concern that the District could not care for M.B., particularly in light of two referrals the District made to Children and Youth Services (CYS) regarding M.B.'s behavior - November 21, 2013 for inappropriate behavior (see R.R. at 489a-491a) and December 16, 2013 for bruising (see R.R. at 492a-495a). Graham requested the District to convene an IEP team relative to the CYS reports as soon as possible, stating that she advised Parents to keep M.B. at home until an IEP meeting was held. See R.R. at 280a-281a. The District's Superintendent responded that someone will attend the IEP on his behalf, and warned: "Please understand that your recommendation for [P]arents not to send [M.B.] to school may be considered violations of both [the District's] attendance policy as well as the Commonwealth's compulsory attendance requirements." R.R. at 282a. The IEP request made no reference to either an ATA or a functional behavioral assessment (FBA).
In response to Parents' request, a meeting took place among Parents and District staff on January 10, 2014. On January 14, 2014, Parents filed a due process complaint with the Department of Education, Bureau of Special Education alleging that the District denied M.B. an FAPE. Parents proposed the following resolution:
At the January 10, 2014 meeting, Parents contended that they raised M.B.'s school phobia and ATA needs. Whereas, the District claimed that the discussion was limited to the District's responsibility as a mandatory child abuse reporter and M.B.'s purported school phobia.
An [Independent Educational Evaluation (IEE)] that assesses [M.B.]'s disability and present levels of achievement and provides detailed recommendations for providing [M.B. a] FAPE[.]R.R. at 3a.
A plan to address [M.B.]'s school phobia.
An interim Positive Behavioral Support Plan pending the development of a data[-]driven FBA-Based Positive Behavioral Support Plan.
An [ATA] to determine what hardware and software can be used to assist [M.B.] in communicating to the [District's] educators . . . .
A revised IEP that delivers [M.B.] FAPE prospectively[.]
Compensatory Education[.]
"Compensatory education is an equitable remedy appropriately awarded to qualifying students that have been denied the special education services necessary to provide them with the [FAPE] required by law." Waslow v. Pa. Dep't of Educ., 984 A.2d 575, 577 n.3 (Pa. Cmwlth. 2009).
The District filed an answer to Parents' complaint, stating that M.B. receives one-on-one assistance throughout the day in the Autism Support Classroom, that classroom staff have tried various assistive communication devices and that since the staff deems M.B.'s noise-making communicative rather than behavioral, no FBA was necessary. See R.R. at 5a-10a. The District further responded that if M.B. has a social phobia, it may be due to M.B.'s significant school absences. See R.R. at 7a-8a. In response to Parents' proposed resolutions, the District stated:
According to the District, M.B. was absent a total of 20 days (14 of which were unexcused) before Parents' removed M.B. from school. See District Br. at 19.
[T]he District agreed to an independent evaluation; a transition plan to bring [M.B.] back to school, regardless of the actual reasons for his absence; data collection for the purpose of refining the positive behavioral support plan, even though the District at the present time believes that the noise[-]making complaints of [Parents] are not an impediment to [M.B.'s] education or the education of others, but simply [M.B.'s] method of communicating; and the District has agreed to an [ATA] to determine what hardware and software can be used in the future to assist [M.B.] with communication skills.R.R. at 9a (emphasis added). The District also contended that compensatory education is not appropriate since M.B. has received an FAPE.
In accordance with Section 1415(f)(1)(B) of the IDEA, 20 U.S.C. § 1415(f)(1)(B), Parents and the District participated in a Resolution Meeting on January 20, 2014. In a pre-hearing motion, the District moved to dismiss Parents' complaint because there was no substantive dispute between Parents and the District, and the District agreed to all of Parents' requests at the Resolution Meeting except perhaps Parents' withholding M.B. from school, which is not an IEP matter. See R.R. at 97a. In its brief, the District also argued that the only issue remaining after the Resolution Meeting was the District's refusal to pay Parents' attorney's fees. See Parent Br. at 25-30. Parents disagreed that the District resolved their requests at the Resolution Meeting. See R.R. at 111a-112a.
A due process hearing was conducted on March 6, 2014. When the hearing commenced, M.B.'s counsel Charles Steele (Attorney Steele) represented: "An [IEE] is in place . . . . A school phobia plan has been taken care of." R.R. at 14a. Attorney Steele further reported that although an FBA had not yet been undertaken, the ATA was "underway." R.R. at 14a. Attorney Steele explained: "[T]he issue today is really compensatory education" for the 2012-2013 and 2013-2014 school years driven by M.B.'s inability to communicate in school due to the District's failure to provide M.B. a means by which to do so, and M.B.'s resulting frustration. R.R. at 14a.
Parents' exhibits for the Hearing Officer's consideration consisted of P1 (2012-2013 IEP), P2 (2013-2014 IEP), P3 (Report) and P5 (TFSP). The District furnished Exhibits S1-S4J (Dennis T. Fair, Ph.D.'s report and M.B.'s file). The parties jointly admitted Exhibits JA (Parents' complaint) and JB (District's answer to Parents' complaint).
On March 26, 2014, the Hearing Officer issued a decision in which she denied the District's motion to dismiss, concluded that the District had not appropriately provided for M.B.'s communication needs and ordered the District to conduct an ATA and an indirect FBA, and to provide M.B. one hour per day of compensatory education "for every day [M.B.] attended school from the first day of the 2013-[20]14 school year until the team evaluates the recommendations from the [ATA] and begins to implement any revisions to the IEP . . . ." R.R. at 547a. The District appealed to this Court.
The Hearing Officer clarified that the District need not conduct a full FBA unless the indirect FBA suggests otherwise. See R.R. at 545a.
Between September 16, 2013 and December 13, 2013, M.B. attended school 51 days. See R.R. at 438a-480a. According to the record, M.B. remained absent from school after December 13, 2013 until sometime in February 2014. See R.R. at 53a. The Hearing Officer stated:
[Parents] may decide how the hours of compensatory education are spent. The compensatory education may take the form of any appropriate developmental, remedial or enriching educational service, product or device that furthers the communication goals of [M.B.]'s current or future IEPs. The compensatory education shall be in addition to, and shall not be used to supplant, educational and related services that should appropriately be provided by the District through [M.B.]'s IEP to assure meaningful educational progress. Compensatory services may occur after school hours, on weekends, and/or during the summer months when convenient for [M.B.] and [Parents]. The hours of compensatory education may be used at any time from the present until the end of the 2015-[20]16 school year.R.R. at 546a.
Our review of a hearing officer's decision "is limited to determining whether an error of law was committed, whether constitutional rights were violated or whether necessary findings of fact are supported by substantial evidence." Lower Merion Sch. Dist. v. Doe, 878 A.2d 925, 927 n.4 (Pa. Cmwlth. 2005), aff'd, 931 A.2d 640 (Pa. 2007).
The District first argues that the Hearing Officer erred in denying the District's motion to dismiss. Specifically, the District contends that since it agreed to conduct an ATA and an FBA, the Hearing Officer's rulings beyond Parents' claim for attorney's fees constituted error.
Section 1415(f)(1) of the IDEA provides, in relevant part:
(A) Hearing
Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.
(B) Resolution session
(i) Preliminary meeting
Prior to the opportunity for an impartial due process hearing under subparagraph (A), the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint--
(I) within 15 days of receiving notice of the parents' complaint;
(II) which shall include a representative of the agency who has decisionmaking authority on behalf of such agency;20 U.S.C. § 1415(f)(1) (emphasis added).
(III) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and
(IV) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting, or agree to use the mediation process described in subsection (e).
(ii) Hearing
If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this subchapter shall commence.
(iii) Written settlement agreement
In the case that a resolution is reached to resolve the complaint at a meeting described in clause (i), the parties shall execute a legally binding agreement that is--
(I) signed by both the parent and a representative of the agency who has the authority to bind such agency; and
(II) enforceable in any State court of competent jurisdiction or in a district court of the United States.
Here, the Parents and the District participated in a Resolution Meeting. Despite Parents' representations that the ATA and FBA issues were not resolved at that meeting, their counsel represented to the Hearing Officer that the ATA was underway and that, although the FBA had not yet begun, the only issue remaining for the Hearing Officer was compensatory education for M.B.'s kindergarten and first grade years. R.R. at 14a. Thus, even though no written settlement agreement was presented, it is clear that some of Parents' issues were resolved at the Resolution Meeting, including the District's agreement to conduct an ATA and an FBA for M.B.
Parents appended a copy of the Department's Resolution Meeting Data Sheet to their brief which reflects that a "partial resolution" was reached at the meeting. See Parent Br. Ex. 1 at 3. However, because the Resolution Meeting Data Sheet was not part of the record certified to this Court by the Department, this Court may not consider it. Liberty Mut. Ins. Co. v. Excalibur Mgmt. Servs., 81 A.3d 1024 (Pa. Cmwlth. 2013).
In her decision, the Hearing Officer concluded that an ATA was necessary, but that "[i]t is not clear . . . whether the District has already agreed to conduct an [ATA], so this issue is addressed in the event it has not been resolved." R.R. at 544a n.13. The Hearing Officer held that an indirect FBA was in order, but that "[i]t is not clear . . . whether the District has already agreed to conduct a[n FBA], so this issue is addressed in the event it has not been resolved." R.R. at 544a n.14. In A.S. v. Office for Dispute Resolution (Quakertown Community School District), 88 A.3d 256 (Pa. Cmwlth. 2014), this Court held: "If a resolution is reached to resolve a due process complaint prior to the hearing, the parties are statutorily required to execute a legally binding settlement agreement that is enforceable in any State court of competent jurisdiction . . . . 20 U.S.C. § 1415(f)(1)(B)(iii)." Id. at 264 n.11 (emphasis added). In addition, a resolution in this case could have the effect of amending M.B.'s IEP which, pursuant to Section 14.154(a) of the Department's Regulations, must also be in writing. Thus, the Hearing Officer's recognition of the parties' possible agreement as to M.B.'s ATA and FBA and ordering the same if in fact it was not agreed to does not constitute legal error. Moreover, "[t]he core of the [IDEA] . . . is the cooperative process that it establishes between parents and schools. . . . The central vehicle for this collaboration is the IEP process." Schaffer v. Weast, 546 U.S. 49, 53 (2005). Under the circumstances in which Parents' counsel expressly represented that the District agreed to an ATA and an FBA, and the ATA was "underway," but there was no written settlement agreement and the assessments had not been completed, we hold that the Hearing Officer did not err by denying District's motion to dismiss and memorializing the parties' agreement. R.R. at 14a.
In fact, the Hearing Officer ordered that M.B.'s IEP team shall meet shortly after the assessments to determine whether M.B.'s IEP should be revised. See R.R. at 547a ¶¶ 2, 4. --------
Next, the District argues that the Hearing Officer erred in finding that the District did not provide M.B. an FAPE during the 2013-2014 school year. The burden of proving that the District failed to provide M.B. an FAPE is on Parents, as the moving party. Schaffer. A school district denies FAPE if a student's IEP is not reasonably calculated to enable him/her to receive meaningful educational benefit. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982); see also Daniel G. v. Delaware Valley Sch. Dist., 813 A.2d 36 (Pa. Cmwlth. 2002). If an IEP provides necessary special academic support without adequately addressing behavior issues that affect the student's ability to learn, it may be deemed inappropriate. Stroudsburg Area Sch. Dist. v. Jared M., 712 A.2d 807 (Pa. Cmwlth. 1998). This Court has recognized that "the IDEA is not satisfied by affording the student a de minimis benefit which is trivial or insufficient." Susquehanna Twp. Sch. Dist. v. Frances J., 823 A.2d 249, 256 (Pa. Cmwlth. 2003).
At the hearing, M.B.'s mother (Mother) testified, in relevant part, that although M.B. will initiate a few words without prompting, like "'I want pop,' 'lollipops,' or 'Coke' or whatever toy," M.B. primarily communicates using behaviors like moaning, crying and whining, and must be aided in finding the right words. R.R. at 33a-34a. She stated that M.B. will take her hand and lead her, or will use the Book, iPod or iPad with pictures for expression. She described that M.B. has substantial sensory needs which makes M.B. move around quite a bit. Mother also articulated that M.B. will avoid things M.B. does not wish to do. Mother recalled that the kindergarten teacher successfully used M.B.'s iPod to assist M.B. with communication. Parents also purchased an iPad which M.B. used for expression at home by pointing to pictures on the screen. Mother did not disagree regarding the District's representations of M.B.'s school behavior, only that M.B. did not have the same issues at home.
Mother declared that when M.B. is able to communicate by other means, M.B. need not resort to the moaning and crying behaviors which interfere with M.B.'s learning. Although she stated that if M.B. is provided with an iPod, iPad or effective picture schedules, M.B. would not need to resort to such behavior, she nevertheless agreed with the 2012-2013 IEP which stated that an ATA and FBA were unnecessary at that time. She admitted that she did not specifically raise the issue of M.B. using an iPad during the 2013-2014 IEP meeting. However, she maintains that she relied upon the District and M.B.'s teachers to inform her as to whether M.B. needed an ATA or FBA at that time.
Mother stated that her goal in requesting an IEP meeting in December 2013 was to foster better communication between the District and Parents, and to get M.B. necessary support, including an FBA. She claimed that Graham raised the ATA issue at the January 10, 2014 meeting, but was told by the District representatives that an ATA for M.B. was unnecessary.
Mother reported that she obtained the necessary releases for Penezic to meet with M.B.'s school speech/language therapist in order to coordinate their efforts. Thereafter, she assumed that the District's therapist would contact Penezic, but that did not happen. She claimed that she did not invite Penezic to M.B.'s IEP meetings because she did not think Penezic would be available to attend.
Penezic also testified on Parents' behalf. She confirmed that she has provided M.B. speech therapy in weekly 30-minute sessions since January 2012. She agreed that because M.B. cannot readily communicate thoughts and feelings in words, M.B. becomes frustrated and responds by moaning, crying or making other sounds. Penezic stated that M.B.'s communication and vocabulary have increased and grown over the years, and that M.B. retains what M.B. has learned. She believed that M.B. desires to communicate, M.B. understands what M.B. is being asked, and M.B. will initiate communication with the Book for desired expression (i.e., to play in the ball pit or assemble a puzzle at therapy). M.B. continues to use the Book at every session.
Penezic stated that use of an iPad application with pictures and voice (such as Proloquo2Go) has been an effective means by which M.B. can communicate. She explained: "[S]ometimes [M.B.] does have a word-finding issue. So hearing that and then having [M.B.] verbalize it would help [M.B.] to really understand and to, you know, grow - - increase [M.B.'s] communication" and, thus, afford M.B. a broader communication opportunity than the Book, particularly in an academic setting. R.R. at 19a. Penezic confirmed that M.B. likes the iPad, is able to swipe and scroll on it, and has benefitted from using it. She uses an iPad occasionally during M.B.'s therapy sessions, but the applications are not specialized for M.B. She stated that, given a choice, M.B. may choose that form of communication over moans, crying or other noises. Penezic recommended that iPad media and game distractions should be removed and M.B. be taught that the device is for communication only.
Penezic opined that some of M.B.'s school behaviors may be due to M.B.'s school and teacher changes in first grade, but stated that the District's transition plan should have prevented much of it. Due to the nature of M.B.'s special needs, she reported that she often provides M.B. with sensory breaks during which M.B. will do a physical activity. This break calms M.B. and allows M.B. to then focus to assigned tasks.
Penezic reported that Parents signed releases for her and the District to share their work concerning M.B., and she is willing to visit M.B. at school, to share what she has been doing and be a part of M.B.'s team, but she has never been afforded that opportunity. She acknowledged, however, that Parents did not invite her to participate in M.B.'s IEPs, she did not reach out to the District and the District has never contacted her.
The District presented Dennis T. Fair, Ph.D., chairman of Slippery Rock University's special education department (Dr. Fair), the District's Director of Pupil Services Nicole Bezila (Bezila), District speech and language pathologist Karen Rahl (Rahl) and autistic support special education teacher Amber Hreha (Hreha) at the hearing.
Dr. Fair reviewed M.B.'s records at the District's request and, on February 26, 2014, issued a report in which he opined that "the District has provided [M.B.] with a [FAPE] in the least restrictive environment." R.R. at 251a-279a. At the hearing, Dr. Fair stated that although he did not personally observe M.B. in the classroom or interview anyone, he could conclude based upon M.B.'s documentation and the IEP team's indication on both IEPs that M.B.'s classroom behaviors did not require an FBA or a positive behavior support plan. In particular, he reviewed M.B.'s EBII plan, IFSP Report and kindergarten and first grade IEPs.
Bezila testified that she attended the January 10, 2014 meeting on behalf of the District with Parents. Bezila explained that it was not an IEP meeting, and ATA was not discussed. Rather, the focus of the meeting was the District's CYS referrals. The District explained its mandatory reporter status to Parents and Graham, and they discussed a plan for M.B.'s return to school. She acknowledged that Parents mentioned a school phobia during the meeting, but declared that such a condition had not previously been documented anywhere.
Rahl was also a member of M.B.'s 2013-2014 IEP team. She stated that she has worked daily with M.B. at school since the beginning of the 2013-2014 school year, even though M.B.'s 2013-2014 IEP reflects that M.B. is to receive speech/language therapy only twice per week. Rahl explained that during her sessions, M.B. used an iPad and then proceeded to a series of other tools, including a Picture Exchange Communication System (PECS) very similar to the Book. Rahl found that M.B. is very motivated by and is able to use the iPad with assistance. She states that she used the basic iPad Proloquo2Go application with M.B. twice in October 2013, but that M.B. could not independently swipe or open the icons and, thereafter, M.B. was out of school for a time. Rahl reported that when M.B. returned to school in February 2014, after a few sessions during which M.B. exhibited more verbalization and joint attention, she used the iPad again. However, she acknowledged that the 2013-2014 IEP does not reference that she used an iPad for M.B.'s therapy.
Rahl recalled a discussion at the 2013-2014 IEP meeting about an ATA for M.B. However, she clarified that since she uses the iPad to motivate M.B. to verbalize, rather than for functional communication, she believed an ATA was not necessary and Parents did not object or disagree. She described that she was working on making M.B.'s joint attention more consistent, which is the foundation of communication, before pursuing other avenues. She acknowledged that an ATA for M.B. may be needed at some future time. Rahl concluded that the 2013-2014 IEP team, which included Parents, determined that pursuing an assistive technology device at that time for M.B. would not be the best practice since "[M.B.]'s joint attention skills were just emerging." R.R. at 49a.
Rahl testified that although she is not certified to conduct FBAs, she has been involved with many, and agreed with the IEP recommendation that M.B. does not need a formal behavior plan. She explained that M.B. communicates with moaning and other sounds. She admitted that M.B.'s sounds have not hindered M.B.'s learning or the learning of other students in the classroom. Rahl stated that when she is in the classroom, she has M.B. use the PECS accompanied by her verbalizations to express M.B.'s desire, which sometimes helps. She acknowledged that one benefit of having M.B. use the iPad is to produce desired verbalizations when she is not present to do so. Rahl concluded that M.B. made meaningful educational progress during the 2013-2014 school year.
Rahl claimed that she was initially unaware that Penezic was also working with M.B. After she discovered that fact, she twice attempted to contact Parents to coordinate her therapy with Penezic. Because Parents did not return her calls, she raised the issue again at the 2013-2014 IEP meeting. Although Rahl advised Parents of her availability to attend M.B.'s therapy session with Penezic, Penezic never contacted her, and she did not wish to attend the private therapy sessions without express permission. Rahl stated that she would still be happy to meet with Penezic.
Hreha is M.B.'s teacher in the Autism Support Classroom for the 2013-2014 school year. She described that there are six students in the class, attended to daily by her, Rahl and five aides. She uses the PECS individualized for each student. Hreha testified that she used an iPad to motivate M.B., but not as a communication system. She reported that she is familiar with the Proloquo2Go application because another student in the class uses it to communicate. She acknowledged that there is a variety of assistive technology available besides the iPad. Hreha reported that despite Parents' claim that M.B. successfully used an iPod to communicate at home, she did not find that to be the case in school. In her opinion, M.B.'s iPad use reflected learned behavior rather than an attempt to communicate. She testified that she gave M.B. the iPod daily during the first six weeks of the 2013-2014 school year, but found that M.B. did not use the device to express M.B.'s actual desires. She stated that she has seen M.B. swipe the iPad and iPod screens, however, she has had to open the icons. Hreha explained that she uses the devices as rewards for M.B. rather than for communication. Hreha expressed that she was unaware that M.B. had a private speech therapist.
Hreha stated that she and the rest of the IEP team agreed that an FBA was not necessary for M.B. Hreha maintained that the Autism Support Classroom is designed to allow the students to behave in a manner typical with autism. She explained:
The behavior system in the classroom does cover the behaviors that [M.B.] is exhibiting; and the behaviors specifically that [Parents] have addressed after the IEP, we felt, were -- for example, the moaning and stuff like that, they were used as communication, and we did not want to discourage them. We wanted to encourage them, and we did not feel like those behaviors were impeding his learning but actually enhancing his ability to communicate with us.R.R. at 57a. She described that when students like M.B. exhibit acting out behaviors, the staff directs the student to PECS for expression, redirects to the task at hand, encourages and rewards for task completion, and then documents what occurred before and after the behavior. Hreha stated that because this is general classroom procedure, it is not articulated in the individual student IEPs. Hreha testified that she completes daily behavior reports for each student, including M.B., in order to keep parents apprised of any issues. She admitted that the 2013-2014 IEP does not delineate the function of M.B.'s classroom behaviors, and that she did not create a more individualized classroom behavior plan for M.B. According to Hreha, M.B. made meaningful educational progress during the 2013-2014 school year.
"The decision of the hearing officer shall include findings of fact, discussion and conclusions of law. . . . [T]he decision shall be based solely upon the substantial evidence presented at the hearing." 22 Pa. Code § 14.162(f); see also A.S. v. Office of Dispute Resolution (Quakertown Cmty. Sch. Dist.), 88 A.3d 256 (Pa. Cmwlth. 2014). "It is not this Court's function to reweigh evidence, but simply to ensure that substantial evidence supports the findings and conclusions made." E.N. v. M. Sch. Dist., 928 A.2d 453, 464 (Pa. Cmwlth. 2007). "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It exists only when upon examination of the whole record, the evidence, including the inferences therefrom, is found to be such that a reasonable man might have reached this decision." Id. at 463 (quoting Brady v. Workers' Comp. Appeal Bd. (Morgan Drive Away, Inc.), 923 A.2d 529, 533 n.4 (Pa. Cmwlth. 2007)).
Here, the Hearing Officer "found each of the witnesses to be generally credible and the testimony as a whole on matters important to deciding the issues in this case was essentially consistent." R.R. at 542a. She also specifically found that the 2013-2014 IEP's goals were responsive to M.B.'s significant communication and behavioral needs and recognized M.B.'s inability to function in the classroom without one-on-one support. She stated that "the record does not establish a lack of any meaningful educational benefit to [M.B.]." R.R. at 546a. The Hearing Officer deemed the District's failure to investigate M.B.'s successes using technology outside of school when the District's in-school methods consistently proved ineffective was perplexing, but nevertheless concluded:
Despite the fact that [M.B.]'s inability to communicate existed throughout the school day, . . . [M.B.] would still be in the early stages of communicating wants and needs, responding to [M.B.]'s name, and answering simple questions at school, even if the programming had appropriately addressed functional communication from the beginning of the 2013-[20]14 school year.R.R. at 545a. Thus, the Hearing Officer was "persuaded that an assessment of [M.B.]'s assistive technology needs is necessary at this time." R.R. at 544a (emphasis added). The Hearing Officer clarified as to the ATA, "[t]his conclusion does not indicate disagreement with the speech/language pathologist's recommendation that [an ATA] was not necessary in November of the 2013-[20]14 school year." R.R. at 544a n.13. In regard to the FBA, the Hearing Officer similarly found:
Upon consideration of the record as a whole, including information that [M.B.]'s behavior was distracting to peers in the past, and at times disruptive to [M.B.]'s learning, as well as the lack of success in the autistic support teacher's informal efforts to determine the function of [M.B.]'s behaviors . . . , this [H]earing [O]fficer concludes that [an FBA] . . . is also necessary at this time.R.R. at 545a (emphasis added). Finally, the Hearing Officer ordered that "[t]o the extent that the parties may have already reached an agreement on an [ATA] and/or a[n FBA], that agreement shall control." R.R. at 547a.
After a thorough review, we conclude that the Hearing Officer's findings are supported by substantial record evidence. In particular, we agree that the 2013-2014 IEP's goals were generally responsive to M.B.'s needs, District staff attempted to use communicative technology with M.B., and there is no allegation that M.B. failed to receive meaningful educational benefit during the 2013-2014 school year. Like the Hearing Examiner, we are perplexed that despite having known and agreed since at least the 2012-2013 kindergarten year that M.B. had significant communication needs, there had been only inconsistent and limited progress on M.B.'s communication goals. Despite widespread agreement that M.B. used behaviors to communicate when other avenues are unavailable, and that M.B. had more success with assistive technology outside of school, the District failed to take affirmative measures to determine why M.B. did not exhibit those successes at school. "[I]t is the responsibility of the child's teachers, therapists, and administrators—and of the multi-disciplinary team that annually evaluates the student's progress—to ascertain the child's educational needs, respond to deficiencies, and place him or her accordingly." M.C.. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996). Under the circumstances, we affirm the Hearing Officer's conclusion that "the District did not appropriately program for [M.B.]'s communication needs" during the 2013-2014 school year. R.R. at 545a.
Finally, the District argues that the Hearing Officer erred in awarding compensatory education dating back to the beginning of the 2013-2014 school year. The District maintains that the Parents' failure to request an ATA for M.B. should mitigate against compensatory education.
"Compensatory education is an equitable remedy appropriately awarded to qualifying students that have been denied the special education services necessary to provide them with the [FAPE] required by law." Waslow v. Pa. Dep't of Educ., 984 A.2d 575, 577 n.3 (Pa. Cmwlth. 2009). Where compensatory education is deemed appropriate, "the student is entitled to an amount of compensatory education reasonably calculated to bring him to the position that he would have occupied but for the school district's failure to provide a[n] FAPE." B.C. v. Penn Manor Sch. Dist., 906 A.2d 642, 651 (Pa. Cmwlth. 2006). Moreover, compensatory education is triggered when a school district knew or should have known of its obligations, and not by parental vigilance. M.C.
The Hearing Officer declined to assess compensatory education for the District's failure to perform an FBA for M.B.'s first grade IEP because she could not conclude that M.B. required an FBA at that time. See R.R. at 545a. She awarded M.B. "one hour [of compensatory education to address Student's communication needs] per day for every day of school [M.B.] attended during the 2013-[20]14 [first grade] school year," until the ATA recommendations are incorporated into M.B's IEP. R.R. at 546a. She reasoned:
[M.B.] has been provided fifty minutes per week of speech/language therapy in addition to an undetermined amount of push-in services each day, and made limited progress in this important area. Despite the fact that [M.B.'s] inability to communicate existed throughout the school day, given [M.B.'s] significant needs, [M.B.] would still be in the early stages of communicating wants and needs, responding to [M.B.'s] name, and answering simple questions at school, even if the programming had
appropriately addressed functional communication from the beginning of the 2013-[20]14 school year. Additionally, the record does not establish a lack of any meaningful educational benefit to [M.B]. On balance, this [H]earing [O]fficer concludes that one hour per day for every day of school that [M.B.] attended during the 2013-[20]14 school year, until the recommendations from the [ATA] are incorporated into and implemented into [M.B.'s] IEP, is an appropriate award of compensatory education.R.R. at 545a-546a. Finding no error in the Hearing Officer's determination, and since it compensates M.B. for the District's responsibility "to ascertain [M.B.]'s educational needs," and "respond[s] to [M.B.]'s deficiencies," and encourages a prompt resolution of the matter, we hold that the Hearing Officer did not err in awarding compensatory education dating back to the beginning of the 2013-2014 school year. M.C., 81 F.3d at 397.
Based upon the foregoing, the Hearing Officer's decision is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 7th day of April, 2015, the Pennsylvania Special Education Hearing Officer's March 26, 2014 decision is affirmed.
/s/_________
ANNE E. COVEY, Judge